June 20, 2007

Senior judges from North America and Europe were in the midst of a panel discussion about torture and terrorism law, when a Canadian judge's passing remark - "Thankfully, security agencies in all our countries do not subscribe to the mantra 'What would Jack Bauer do?' " - got the legal bulldog in Judge Scalia barking....

"Are you going to convict Jack Bauer?" Judge Scalia challenged his fellow judges. "Say that criminal law is against him? 'You have the right to a jury trial?' Is any jury going to convict Jack Bauer? I don't think so.

"So the question is really whether we believe in these absolutes. And ought we believe in these absolutes."...

[T]he U.S. Supreme Court judge stressed that he was not speaking about putting together pristine prosecutions, but rather, about allowing agents the freedom to thwart immediate attacks.

Even if a real terrorist who suffered mistreatment is released because of complaints of abuse, Judge Scalia said, the interruption to the terrorist's plot would have ensured "in Los Angeles everyone is safe." During a break from the panel, Judge Scalia specifically mentioned the segment in Season 2 when Jack Bauer finally figures out how to break the die-hard terrorist intent on nuking L.A. The real genius, the judge said, is that this is primarily done with mental leverage. "There's a great scene where he told a guy that he was going to have his family killed," Judge Scalia said. "They had it on closed circuit television - and it was all staged. ... They really didn't kill the family."

148 comments:

The more pressing issue is when torture is used as a routine method of extracting "information" from suspects, mnay of whom were detained in random sweeps -- that is, not caught actually doing anything.

So this is what the Left claims now: that we routinely torture people detained in random sweeps. What a crock. There is absolutely no evidence for that. The few aggressive interrogations that have occurred have been done on obvious terrorists like KSM, for the purposes of obtaining info to stop future attacks?

Almost everyone should have the full complement of procedural and substantive due process at every step of every kind of criminal, quasi-criminal, and remotely prison-related proceeding. No kind of psychological or physical anguish of any kind should be visited upon prisoners.

Talk about trivializing torture. Heck, if the Duke LaCrosse players were poor black kids and the accuser were white, they would doing life right now. O'Reilly wouldn't even have mentioned the case and Nifong would be a darling of the right.

Since when - have they adopted a code of warfare similar to Al Queada and the Taliban?

Let's see, they use terror, extortion, drug dealing, bribery of officials to advance their goals. They use religion as a cover to justify their criminal acts and have often controlled significant parts of government (in both Italy and the U.S.). Mafia like organizations in other countries (e.g., Columbia and other South American states) have often been so powerful they have supplanted the recognized government. The Taliban rose to power in Afghanistan precisely because of the lawlessness of the opium-funded warlords.

I would want to know the surrounding quote from which "I don't care about holding people[,] I really don't" is drawn. I suspect that the point he was making - particularly in view of his Hamdi dissent - was that there's nothing in the bill of rights that prevents you from holding prisoners of war indefinitely, and so far as I know, prior to liberals looking for some weapon with which to assail the Bush administration, no one has even hinted that when you capture enemy combatants who aren't citizens of the United States and weren't captured in the United States you have to file criminal charges against them and give them a full dress trial.

I really think the administration has gotten this whole thing backwards. They're desperate to keep detainees out of federal habeas proceedings, and instead they're going to start trying them. That's completely backwards. These are prisoners of war, but they're prisoners of war in a conflict that's really sui generis, one which may last an exceedingly long time. They shouldn't be charged, they should be detained as prisoners of war, indefinitely, but fully entitled to challenge that detention via habeas.

These are prisoners of war, but they're prisoners of war in a conflict that's really sui generis, one which may last an exceedingly long time. They shouldn't be charged, they should be detained as prisoners of war

It's not our fault that these terrorists joined an organization that won't give up until they are all dead. The war goes on until Al Qaeda is gone.

Madison -- The rules of military tribunals are different, often very different, from the rules of criminal law. Ultimately, there can be resolution for people held at Guantanamo until this odd war is over (a war that would be even odder had we not invaded Iraq). There was no resolution for prisoners of war ever until the end of hostilities, and this in accord with any mainstream understanding of the law of war, limited and such as it is.

If Jose Padilla were being held without bail because he is a flight risk pending a trial, would that be justice?

I really think the administration has gotten this whole thing backwards.

Well no Simon, the administration hasn't got it backwards, and your hero, with his uncaring attitude, obviously doesn't care what they do. He obviously believes in the rule of law as little as the administration.

What the administration wants to do, and they have made it very clear, is be able to capture people anywhere in the world and hold them indefinitely, without charges, without ever calling them POWs or granting them any kind of status at all. The last thing they want to do is give anyone POW status. In fact they refuse to even follow the established process to determine if someone deserves POW status. They have created a class of detainees, who, with the stroke of the president's pen, have absolutely no rights. In the words of George Orwell, the president has claimed the right to create "unpersons". Apparently, Scalia, and many others who post on this site, thinks this is just fine and dandy.

I assume Freder agrees with this as well.

We've already covered this, and I am not going over it again. The hypothetical is so outrageously unlikely it is not worth debating. But I guess Scalia's point (that no jury would convict Bauer) is probably the best resolution. Of course Scalia apparently wouldn't even charge Bauer. I think that would be a bad decision.

I've never seen 24. Are we talking about "real" torture, stress methods, or instead, threats of torture?

It has never been illegal for the police to mislead suspects about the fact that their accomplice was ratting them out for example. As I understand the 24 scene, Bauer didn't harm or actually threaten harm to the family, thus not invoking the mafia defense. What he did was threaten the psyche of the terrorist. The information gathered was not for long range legal proceedings, but for immediate operational use and verifiable on the spot.

Simon: I assume these adjacent pieces from the article were linked and that Scalia was talking about what I am, operational intel, not admissible confessions.

Generally, the jurists in the room agreed that coerced confessions carry little weight, given that they might be false and almost never accepted into evidence. But the U.S. Supreme Court judge stressed that he was not speaking about putting together pristine prosecutions, but rather, about allowing agents the freedom to thwart immediate attacks.

Sounds like Scalia isn't the only person having a hard time distinguishing fantasy from reality. The mafia threatens families all the time, just as you'd expect a loose affiliation of violently sociopathic criminals to do. It is only the Mario Puzo Hollywood Mafia that balks at that sort of thing.

These 24-ish scenarios are so far fetched as to be abstract thought experiments.

"better to lose a million Americans in a nuke attack than to wrongly torture an innocent terrorist"

There is a prevalent strain of argument that minimizes the moral outrage of torture in the light of all the millions of lives it saves in these fantasy scenarios.

I suggest modifying the experiment so that the moral outrage of the act doesn't fade so quickly from the mind.

It's the familiar scenario, bomb in L.A., blah blah blah, this man has the secret code that you can punch into the special machine and save 10 million people.

Instead of threatening to kill his son, though, (good honorable action movie violence) he only has a daughter. You have her, though, right there at the interrogation. She's completely innocent, she's just been detained. ("I don't care about holding people.") You've threatened to kill her, he won't give you the magic code. All other options are exhausted.

How about it, guys? Do you rape a woman to save L.A.? It's millions of people, so you have to do it, right? Lets throw in she's 12. Not so action movie glamorous, anymore. Not as big an ego boost. You still gotta do it, right? You can't be some kind of liberal wussy about it.

Sounds like Scalia isn't the only person having a hard time distinguishing fantasy from reality. The mafia threatens families all the time, just as you'd expect a loose affiliation of violently sociopathic criminals to do.

True, they do threaten families of non-members, but generally the families of "made" members are off limits. I got a little carried away there. It is hardly accurate to call the mafia families a "loose affiliation" though. They are highly structured and hierarchical organizations.

The hypothetical is so outrageously unlikely it is not worth debating.

So what odds would you put on it. Say, if you caught KSM, and you figured there was a 5% chance that he knows about a massive terrorist attack... that wouldn't be enough for you?

The problem with you Freder is you accuse others of outrageous hypotheticals, but then make your own outrageous hypotheticals in response. For example, you always take the situations of aggressive interrogations out of context. You assume that the gov is picking up John Doe at a Pizza joint and torturing him for absolutely no reason. That is an outrageous hypothetical. Obviously, if a situation arises where aggressive questioning is needed, it is in the context of some sort reasonable suspicion. In Jack Bauer's world, I don't recall him torturing someone where he had no reasonable suspicion that they knew something.

How about you capture a member of a suicide squad in Iraq. You know that they have an operation in motion to blow-up a marketplace that morning, but you don't know which marketplace. Hundreds would be killed. What should you do... you got maybe 1 hour at the most.

For example, you always take the situations of aggressive interrogations out of context. You assume that the gov is picking up John Doe at a Pizza joint and torturing him for absolutely no reason.

No but we do arrest innocent taxi drivers in Afghanistan and torture them to death and kidnap German citizens for no reason and spirit them off to Afghanistan to be mistreated. The government has admitted that. If you didn't know that, you are just not paying attention.

The proof is in the pudding, Sloan. For all the "enhanced interrogation" techniques we have used, where are the charges and indictments? What grand plots have been uncovered. What did KSM reveal? The liquid bombing plot? Turns out that was a physical impossibility.

And how about Jose Padilla. We tortured him for four years. And what did we finally convict him of? Not the dirty bombing plot we originally claimed he was planning or plotting to blow up apartment buildings, which was the next thing we claimed he was planning, but for filling out a job application for Al Qaeda.

How about you capture a member of a suicide squad in Iraq. You know that they have an operation in motion to blow-up a marketplace that morning, but you don't know which marketplace. Hundreds would be killed. What should you do... you got maybe 1 hour at the most.

The rules on that could not be clearer. The Army Field Manual on Interrogation must be followed no matter what the consequences. There are very good operational and strategic reasons for not deviating from the standards of the field manual even if it means the unfortunate loss of life in the short term.

How would we know that they were going to attack "a marketplace" but not which one? We captured a member of a suicide squad in an attack but the rest of his group hasn't yet struck? What is taking them so long? How did we capture an armed radical bent on suicide, anyway? How do you know the plan you have information about isn't a red herring about to be confirmed by a suicidal voluntary captive?

It's a fantasy. There is always "about to be an attack" in Bagdhad. Torturing Iraqis is only going to make that true for longer.

Sarge - as a general rule of thumb, I assume that media reporting of what Justice Scalia says is almost invariably an intentional or accidental distortion. Even assuming no deliberate attempt to mislead, one can only see Scalia described as a proponent of "original intent" so many times in news reporting before concluding that the media doesn't listen to what he says.

Sloanasaurus said..."It's not our fault that these terrorists joined an organization that won't give up until they are all dead. The war goes on until Al Qaeda is gone."

I wasn't saying they shouldn't be held for the duration just because this is not a war whose end can be foreseen to be reasonably soon, and I'm certainly not suggesting the Constitution prevents them from being so detained, but I do think that as a matter of policy, the assumption of indefinite hostilities does start to raise concerns for the traditional prisoner of war paradigm, which assumes repatriation at close of hostilities, not lifelong incarceration.

Freder Frederson said..."Simon, the administration hasn't got it backwards, and your hero, with his uncaring attitude, obviously doesn't care what they do. He obviously believes in the rule of law as little as the administration."

Freder, this is silly and over the top. We don't have context for the quote, and to suggest that Justice Scalia - of all people - doesn't believe in the rule of law is preposterous. The question is not about the rule of law, the question is over the scope of the application of existing law. It's absolutely clear, for example, that absent Congressional suspension of the writ, an American citizen detained without charge in the United States is entitled to file a habeas petition and ought to prevail. Indeed, in Hamdi, it was Justices Scalia and Stevens who alone were willing to stand up for the rule of law you so cavalierly accuse Scalia of having disregard for.

Now, if we drain the swamp of your comment, there are things I agree with. When the administration detains a person, they can designate them as a POW or charge them with a crime. To be sure, the government can even hold them for a reasonable period of time while determining which route to take, and what constitutes a "reasonable" period of time may be flexible depending on whether a person's a U.S. citizen and where they're detained. But ultimately, I would share to some extent your concern about what one might think of as the John Yoo vision of executive power.

Get real. Your a frickin liar. What has he been on the stretching rack for four years now.

Lies, lies, lies.

Also I should point out that your hero Thomas Ricks is the same guy who wrote the article in the Wash Post last September that Al Anbar Province is "lost." Is Ricks just a crappy reporter or does he make stuff up. Certainly, one should be a little suspicious of any of his other works.

I don't know why you insist that the uniformed military doesn't know what's best when it comes to interrogating prisoners. Why do you want to substitute their judgment for yours (and apparently the writers of 24). Remember the Army Field Manual was rewritten just last year with full knowledge of all the complexities of the war on terror. Yet the military chose to leave it basically unchanged and uphold their standards of humane treatment of all detainees.

I'm sure we will never agree on what is or is not torture. And granted, in isolation, any one thing done to Jose Padilla probably wouldn't constitute torture even in my liberal world. But the aggregate effect, both in duration and cumulative techniques, certainly raises to that level. The methods we used were perfected by the Soviets. We have literally driven him insane.

I assume that media reporting of what Justice Scalia says is almost invariably an intentional or accidental distortion.

Face it Simon, Scalia says some downright embarrassing things in public. His mental state is deteriorating. I never liked the man's jurisprudence, but at least he used to be reasonable, consistent and coherent. Now he is just like that slightly insane uncle who says and does really inappropriate things at family gatherings but everyone just ignores because he is just not "all there" any more.

He is Uncle Leo from Seinfeld now. I think he is suffering from some kind of dementia.

Heck, if the Duke LaCrosse players were poor black kids and the accuser were white, they would doing life right now. O'Reilly wouldn't even have mentioned the case and Nifong would be a darling of the right.

Tell that to the white women attacked by a mob of black kids in Long Beach California last Halloween.

Freder, unless you're physically present at the speeches or you're watching a video, you have no basis for making that assessment. Now, if he was rambling and incoherent at oral argument, we'd know about that through the transcripts. But Tom Goldstein -- no fan of Scalia's jurisprudence either, but a smart, decent and fair-minded guy, and someone who routinely interacts with the Justices, all of which distinguishes him from you -- opined barely a month ago that Scalia is at the top of his game. So basically, I guess what I'm saying is "fuck you." You have no basis whatsoever for making such spurious allegations. It's one thing to say that you disagree with Scalia's jurisprudence, or that you dont like the results it produces, or even to couch that disagreement in absurdly over-the-top ad hominem. But to come in here and - apparently in all seriousness - start making allegations like that is slimy. You're way out of line.

the right wing applies conventional state to state warfare thinking to the struggle against al qaeda, et al.

The comparison fails because the people being swept up are not enemy soldiers in uniform. They are civilians,typically taken from civil society,not a battlefield.

So now we have the military abducting civilians and, based on the rash assumption that the military is perfect and would never sweep up an innocent, being deprived of human rights, usually tortured, and diminishing our nation in the process.

Freder, unless you're physically present at the speeches or you're watching a video, you have no basis for making that assessment.

Well, first of all Simon, since Scalia has cameras and anyone with a microphone physically removed (sometimes with no apparent authority other than "because I am a Supreme Court Justice and I say so") from the room every chance he gets (you might find this little trait endearing, I find it bolsters my contention), there is very little non-hearsay evidence of his various outbursts and antics. But what there is is pretty damning. Making obscene gestures (and no matter how much he denies it, every Italian I know certainly wouldn't use that gesture in front of their mother) in front of a church is one such instance. His constant scolding of his colleagues is another.

I'm not saying the man can't still write an opinion. I'm saying his personality is deteriorating.

Sloanasaurus is so full of shit: "Also I should point out that your hero Thomas Ricks is the same guy who wrote the article in the Wash Post last September that Al Anbar Province is "lost." Is Ricks just a crappy reporter or does he make stuff up. Certainly, one should be a little suspicious of any of his other works."

Here's the lede from the story: "Situation Called Dire in West IraqAnbar Is Lost Politically, Marine Analyst Says

The chief of intelligence for the Marine Corps in Iraq recently filed an unusual secret report concluding that the prospects for securing that country's western Anbar province are dim and that there is almost nothing the U.S. military can do to improve the political and social situation there, said several military officers and intelligence officials familiar with its contents.

The officials described Col. Pete Devlin's classified assessment of the dire state of Anbar as the first time that a senior U.S. military officer has filed so negative a report from Iraq."

YOU lied about what the reporter said. He "reported" on a military report. He didn't make the assertion himself.

----And the great progress you imagine in Anbar is based on a temporary reduction in violence in that area, as violence ramps up elsewhere.

Oh, and Anbar is where the US is arming Sunni militias, who have killed and maimed many American troops. If you think that's progress, your delusion is now complete.

AlphaLiberal said..."the right wing applies conventional state to state warfare thinking to the struggle against al qaeda, et al. The comparison fails because the people being swept up are not enemy soldiers in uniform."

That's a surprisingly substantive point, AL, I'm impressed. That may be a first for you. I disagree that the distinction bears the weight you think it does, but I'm impressed.

"The military has no authority over civilians in the absence of martial law."

Certainly the military has no general authority to detain or try American citizen civilians in America, absent an area being placed under martial law. But that doesn't apply to non-Americans outside of America.

By the way, your citation to Daily Kos would be weak just by virtue of the source, but it's weaker still when the author of that post suggests that the 4th Cir's Al-Marri v. Wrightruling "has just deep sixed the "unitary executive." Notably, neither the Kossack nor the post they cite actually links to the decision although I'm not sure if the problem is that "Conceptual Guerilla" didn't actually read the decision before posting, or if s/he simply has no clue what the Unitary Executive theory is, but it doesn't really matter. Either way, Al-Marri does no such thing.

I'm not sure if the problem is that "Conceptual Guerilla" didn't actually read the decision before posting, or if s/he simply has no clue what the Unitary Executive theory is, but it doesn't really matter.

Yes, yes, Simon, we are all awed by your brilliance and your obscure knowledge that "unitary executive" is not the same as an "Imperial Presidency".

It's putting on the uniform that gives the rights under the Geneva and other conventions. Without it, you are not afforded those rights. You are not part of the criminal justice system, either. You are in a nether place: Guantanamo.

Simon:I guess you don't read much of what I write. Because I've made that point before here and others similar. Maybe you were too busy making your spitballs.

Government abuse of power is pretty central to the question of whether the government should get vastly expanded police state powers. So you don't care if the government abuses their powers, let me guess, as long as victims of the abuse are enemies of Bush. (Can't say the left because now many in the center and the right are enemies, too.)

7 machos, you're going to have to back that assertion up. But I don't think you're right.

And what you're saying is that the US government has the right and authority to grab anyone anywhere in the world and lock them up without habeas rights won in medeivel days or any other right to justice.

Freder,Unfortunately for you, Scalia no longer bars cameras and recording devices from his speeches, and several of them have recently appeared on CSPAN. Even were that not so - I assume you refer to the Hattiesburg incident which has been thoroughly debunked in other places - As a general principal, a speaker and a venue can agree on conditions, including barring recording devices. A party to a contract has every authority to insist on the enforcement of obligations agreed to by the other.

As to the incident in Boston - personally, I think he ought to have flashed her an obscene gesture, but alas, the record bears out his version of events. Still, if he actually did tell her to get stuffed in no uncertain terms, kudos.

"His constant scolding of his colleagues is another."

Because that's a new characteristic of Justice Scalia's dissenting opinions. Now, I will concede that Zuni was nuclear, even by Scalia's standards, but he's been writing lacerating opinions since his first term on the court (indeed, since the second dissent he wrote after ascending thereto, see Johnson v. Transportation Agency, 480 U.S. 616, 657 (1987) (Scalia, J., dissenting)), and the more egregiously wrong the court's decision, the more he dials it up (cf. U.S. v. Virginia, 518 U.S. 515, 566 (1996) (Scalia, J., dissenting)). Biting humor and excoriation is nothing new. Now, one Justice whose scolding of their colleagues this term has been markedly more intense and less lucid than normal is Justice Ginsburg. But of course, why on earth would you go after Justice Ginsburg, Fred? After all, you agree with her.

"I'm saying his personality is deteriorating."

A claim that you have no basis whatsoever for making, and which is repudiated by reports from people who do have a basis for assessing the matter (people who disagree with him, even) and several recent appearences on CSPAN.

YOU lied about what the reporter said. He "reported" on a military report. He didn't make the assertion himself.

I said it was bad reporting. Obviously his source was completely wrong. Guys like Ricks and Seymore Hersch apparently have these secret sources, yet Rick's source obviously screwed him on this one. One of Ricks major themes is that everytime he went to Iraq it was worse then before. Except, now Anbar is a huge exception to Rick's major premise. Perhaps Ricks is so invested in the Iraq war being hopeless that he wanted to believe that his source was right, when his source was completely wrong. Ricks did some sloppy reporting. Why shouldn't we assume that everything he does is sloppy.

Freder Frederson said..."we are all awed by your brilliance and your obscure knowledge that 'unitary executive' is not the same as an 'Imperial Presidency'".

It's hardly an obscure theory, which begs the question of why "Conceptual Guerilla" doesn't know what it is (or else doesn't care since it's a convenient weapon to wield against the Bush administration), and I assume the same goes for Alpha since he cited it.

It's putting on the uniform that gives the rights under the Geneva and other conventions. Without it, you are not afforded those rights. You are not part of the criminal justice system, either. You are in a nether place: Guantanamo.

Will you please stop spreading this lie. Geneva does not just deal with POWs and ignore all other classes of persons caught up in conflict. POWs and civilians who work directly for the military, so your statement isn't even accurate (haven't you even seen The Great Escape? Remember the Donald Pleasance character, he was a civilian along on a bombing run when he was shot down) are merely the class of detainee deserving the best treatment. All detainees are entitled to some kind of process and basic rights. Even if you ignore Geneva there are numerous other agreements and treaties that demand basic due process rights and humane treatment.

So you don't care if the government abuses their powers, let me guess, as long as victims of the abuse are enemies of Bush.

Of course I care. I just don't think that the government is abusing its power in this case. There is a war on and the government needs a little more room to prosecute the war. For example I would never advocate that the government be able to listen to peoples phone calls without a warrant unless a specific situation arose that made listening to such a call a matter or national security; i.e. an international call from a number found on a suspected terrorist's cell phone to a person in the U.S.

A party to a contract has every authority to insist on the enforcement of obligations agreed to by the other.

You really do need to go to law school Simon and stop pretending to be a lawyer on the internet. In your contracts course you will learn that you can't, as a public figure and employee, use public employees to eject private individuals from a public forum just because they are recording you. Even if you don't like being recorded. Of course if you are giving a private speech at a private venue the rules are different.

What is disturbing about the whole thing is that the spectre of 'nuke L.A.' has been used to justify the mistreatment of thousands of prisoners around the world.

In other words, the administration has used a scare tactic about a hypothetical to justify torture and other kinds of abuse against people who did not have knowlege of any such plan (or are you going to tell me that there are hundreds of nuclear weapons plots out there so that indeed we had to torture thousands to get them to say what we wanted them to?)

Perhaps, but it is a good reason why Scalia would be a better blogger than he is a Justice. Scalia's always been more style than substance, which is why he tends to appeal primarily to young conservative law students and non-lawyers.

the administration has used a scare tactic about a hypothetical to justify torture and other kinds of abuse against people who did not have knowlege of any such plan (or are you going to tell me that there are hundreds of nuclear weapons plots out there so that indeed we had to torture thousands to get them to say what we wanted them to?)

Again this is a false hypothetical. The nuke situation assumes that the person being "tortured" is resonably suspected of knowing about a nuke. No one advocates randomly questioning anyone on the street.

Did you even read the article? He was discussing a classified report. And this was pre-surge. A better talking point for you is that this is further evidence that the miraculous surge has turned things around.

Well as much as you may wish otherwise, it is not the rule, and hasn't been the rule in this country for at least a hundred years, and actually legally (although unfortunately not in practice) for longer than that.

The Germans and the Russians gave each other no quarter in World War II, while the war in western Europe was fought much more humanely (if such a thing is possible). Compare the death and destruction in Eastern Europe with that in Western Europe. There simply is none.

"[T]he U.S. Supreme Court judge stressed that he was not speaking about putting together pristine prosecutions, but rather, about allowing agents the freedom to thwart immediate attacks."

Watch the left go into seizures, en masse. This is called "energizing the base." Why should we be held to a standard of pristine-ness in this area when not in others? Mistaken arrests and prosecutions and even incarcerations happen in the real world, and no one seriously contemplates giving up prosecuting rape suspects, for instance.

True, they do threaten families of non-members, but generally the families of "made" members are off limits.

I imagine the families of FBI agents and US military personnel are off limits too, wouldn't you say?

It is hardly accurate to call the mafia families a "loose affiliation" though. They are highly structured and hierarchical organizations.

How established the hierarchy is these days is a subject for some speculation. It appears that there is a well-established hierarchy within a given "family", but there isn't much coordination between families anymore (nor is there a higher authority with any real power to keep the individual families in line. The setup is a bit like Amway would be if you chopped off the top couple layers of the pyramid. You have a lot of people in the same business, in competition with each other, but without much control over (or concern with) what people in neighboring branches are up to.

The link to that "view" leads right back to this comment thread. I'm curious to see what is so "interesting" about the views of the Egyptian dictatorship -- you did know that their media is effectively state controlled, right?

Freder,

All detainees are entitled to some kind of process and basic rights.

The process they are entitled to is a military hearing to determine if they really were enemy combatants. If the tribunal finds that they were, they have the "right" to be imprisoned until Al Qaeda and the Taliban surrender to the United States -- something that, unfortunately for them, isn't likely to happen within their lifetimes.

As for their "mistreatment" -- the bulk of the Geneva conventions don't cover non-signatories, and neither the Taliban nor Al Qaeda have ratified the treaties. Furthermore, violation of conditions of the treaty by one side frees the other side from obeying them. As both Al Qaeda and the Taliban have been torturing civilians and executing prisoners without trial we are free, under the conventions, to do so to captured members of Al Qaeda and the Taliban.

In summary, we would be in complete compliance with the international laws of warfare if, upon a tribunal's finding that a Gitmo prisoner was an Al Qaeda fighter, we simply put them up against the wall and blew their brains out. That we are treating them better than that is something we deserve brownie points for.

How established the hierarchy is these days is a subject for some speculation.

There is no doubt that the Mafia is a shadow of its former self. Since J Edgar Hoover died and the FBI was freed up to pursue the Mafia, most, if not all, of the major families have been infiltrated and many top leaders have been turned. Some of the cities that once were practically run by the Mafia (e.g., Kansas City) have had their organizations completely dismantled. Heck, they had to give up Las Vegas to legitimate businessmen. So they are much more circumspect and the organizations are a lot looser than they were in the fifties and sixties.

In summary, we would be in complete compliance with the international laws of warfare if, upon a tribunal's finding that a Gitmo prisoner was an Al Qaeda fighter, we simply put them up against the wall and blew their brains out. That we are treating them better than that is something we deserve brownie points for.

That is simply not true. They are still covered under the International Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment.

The comparison fails because the people being swept up are not enemy soldiers in uniform. They are civilians,typically taken from civil society,not a battlefield.

Uh no. They are illegal combatants, the very people that your precious Geneva was designed to prevent.

Its hysterical to watch the Left get self-righteous about this. They would prevent me from waterboarding known terrorists to prevent my platoon from being blown up by an IED, but when its their family, their life, their city, somehow its different and they want exceptions made to their naive idealistic position on torture. Selfish little copperhead weasels pretending to be anti-torture only to score political points. Because like everything else, the Left doesn't really believe in the things they lecture us about. Moral cowards all.

Not that any of this matters. I'll be more than happy to look the other way because someone forgot to read Mohammed his Miranda. Let freder and doyle and alpha all die choking on their own blood [metropoliton blue city-states are primary terror targets] and then we can wage this war to win.

Any people within a nation or civilization that work to defeat security and enable a foreign enemy's success generally have a short lifespan, same with any ruling class that betrays their people to a foe.

It is a little esoteric, but germane to "torture, war, law" issues that a long succession of philosophers examining the principle of the State - from Sun Tzu and Plato up to Locke and Marx have stated that the Ruler exists 1st and foremost to protect the people from predators.That the polity, guided by an elected Rulership, a tyrant even - owes their legitimacy to doing security 1st and foremost as a contract for people surrendering certain of their rights, wealth, and independence to the ruler.

The same philosophers held that all laws & rights developed in a State are essentially meaningless without security being in place that enables such laws and rights to rise from a condition of anarchy and defended against a return of anarchy or enemy slaughter.

If the Ruler fails in this, all the Rulers laws and all the Ruler's authority lose their legitimacy.

In the present situation, Lefties fail to understand the consequences if the Ruler feels so constrained by abstract laws and morals that they fail to protect their people.

An example would be that if 95% of the people feel it is right to interrogate and even torture enemy Islamoids using say, massive anthrax attacks on American schools and shopping malls and what they would do personally if they could - and the government fails to protect and defies the subjects of the Ruler? According to Locke, Machiavelli, Hobbes, Rousseau - the Ruler and his enabling ACLU, Lefty types may reasonably expect that the people in their self defense will destroy the Ruler, kill or remove his enablers from influence, fix the laws and bureaucracies and courts that helped kill thousands, maybe millions of us of us.

The consequences are the People will naturally feel compelled to kill or remove from power the Ruler, tear up any subverting laws and constitutions and treaties, and, in this case, possibly destroy the Lefties that threatened the nation's security in fighting and defeating a murderous enemy.

To be willing to kill, imprison, exile the enemy within - to set up a workable State that won't fail the people and let them be slaughtered in deference to a pile of Marxist, anti-West lawyers and NGOs wishes.Basically why treason and giving aid and comfort to the enemy have, since the dawn of history, been among the worst crimes that death is usually exacted as penalty for.

Just as no battleplan fully survives contact with a powerful enemy, no nation's laws do, either. Nor do the insipid "perfect moral frameworks" of an ideal world that Lefties think should be strived for, even in wartime, even if it ensures our defeat at the hands of barbarians who hold no higher morality in store for us if we are defeated. Only death, conversion, enslavement, or Dhimmitude under Sharia.

***************As an aside, we had revelation in 2005 that both the Soviets and the UK-US maintained secret interrogation facilities for high-value Nazis to get the up to date intelligence the battlefield required from 1940-45.

No transport item had higher priority than high value Nazis that had to be cracked in interrogation, not near-exhausted ammo supplies, not dying wounded soldiers (sometimes booted from planes and left to die so a captured Nazi colonel or Sgt wireless operator could be flown to England to teams that used physical and mental coercion to break the Nazis.)The Soviets employed more brutal, but equally as effective techniques on their Nazis to get tactical awareness on the battlefronts.

Three Jewish Americans selected as interrogators because of their language and cultural fluency in German plus strong motive were interviewed 60 years later. Those "Nazi-crackers" said their harsh methods worked quickly, info was reliable, saved tens of thousands, helped win certain battles.

Hi sloan....when you got a degree from law school did they give you an ethics test? i mean like i will obey laws and honor laws and the constitution and be an advocate for justice...something like that?

hdhouse said... Hi sloan....when you got a degree from law school did they give you an ethics test? i mean like i will obey laws and honor laws and the constitution and be an advocate for justice...something like that?

Just curious.

Just curious, henhouse, if you are a lawyer with all your peacetime rules and legal ethics - then you are drafted in wartime against your will, placed on a mission, and your commander orders you to kill 3 of your uniformed enemy at a radar site, apparantly unarmed and oblivious to your weaponry....

Would you do so without Mirandizing them? Requesting your commander capture them instead so the ACLU can defend them at a trial?

Or do you shoot and kill without "due process in court"?

What if you see 3 not in uniform operating that enemy radar? Do they get more rights? If so, shouldn't our guys don civvies for added protection and "sacred due process rights" in your opinion?

Freder Frederson said..."You really do need to go to law school Simon and stop pretending to be a lawyer on the internet. In your contracts course you will learn that you can't, as a public figure and employee, use public employees to eject private individuals from a public forum just because they are recording you. Even if you don't like being recorded. Of course if you are giving a private speech at a private venue the rules are different."

And the speech at Hattiesburg was where? Oh, that's right - Presbyterian Christian School, where the school's "goal is to glorify God by assisting the Christian family in the discipleship, education, and nurture of its children and to ensure the success of each student who is enrolled." You think that school's a part of the public school system?

Maybe you ought to go to law school, Freder, where you'd learn in every course that you first figure out what the the facts of the case are.

(All of which, by the way, is to set aside the question of whether the Marshalls acted on direction from Scalia, contrary to what he's said and they've said.)

Eli Blake said..."What is disturbing about the whole thing is that the spectre of 'nuke L.A.' has been ..."

Eli, I hate to point out the embarassingly obvious: If and when Al Queda manage to sneak a nuclear weapon across that big aul' border liberals are so insistent that we leave open and unmanaged, Eli, where do you think they're going to detonate it - Casper, Wyoming? Jackson, Mississippi? Nope. San Francisco. L.A. New York. D.C. One of those big aul' cities that, ironically enough, vote Democratic. If Douglas Adams wasn't dead, I'd assume we were in one of his novels right now. It's a mystery to me why the people who are most cavalier about the threat of Al Queda obtaining and using WMD are the very people most likely to be at ground zero if they do.

"In summary, we would be in complete compliance with the international laws of warfare if, upon a tribunal's finding that a Gitmo prisoner was an Al Qaeda fighter, we simply put them up against the wall and blew their brains out."

That is simply not true. They are still covered under the International Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment.

First of all, the convention on torture doesn't prohibit summary executions of prisoners, so you're wrong about that. So long as we don't inflict pain on them first, we're free to kill them without that particular treaty coming into play.

Secondly, and more importantly, you need to go here and read the lengthy list of qualifications the United States applied to the treaty when we signed it. What the text of the treaty itself says doesn't matter -- the United States is only bound by the treaty as interpreted and qualified by the Senate upon ratification. That ratification leaves us plenty of room to treat Al Qaeda prisoners as we see fit -- when you cut through all the pretty words and nonsense, our ratification basically amounted to "we promise to look like we banned torture while retaining the power to go ahead and use it if we want to". For example, the United States expressly rejected the portion of the treaty holding that anyone other than the United States itself had the power to decide if the United States was in violation of the treaty.

Can you please provide the cite from the Geneva Conventions that allows this (don't waste your time, it ain't there--in fact, do waste your time, you will find it provides just the opposite of what you think it does).

Regardless, even if your incorrect understanding of the Geneva Conventions were accurate, such treatment would still violate the UCMJ, which provides that anyone captured on the battlefield is entitled to due process and humane treatment, no matter what the circumstances of their capture, whether they are in uniform, or how horrible the war crimes they may have committed.

And Cedarford, all I can say to you is you would have made a great agent in SMERSH or the Gestapo, I'm sure it wouldn't really matter which to you as long as you were convinced that whoever you were torturing was a threat to the nation--that is they disagreed with what the government believed was correct.

If there is a chance that information can be had from a suspect that will certainly save my family and friends from destruction, then I want the interrogator(s)of said suspect to go all Malcolm X on their a--:

By any means necessary.

Just don't tell me about it.

That said, who do you trust to not use that license on the wrong persons?

First of all, the convention on torture doesn't prohibit summary executions of prisoners, so you're wrong about that.

It is a funny interpretation of the plain meaning of a statute (you might want to ask Simon about that) where summary execution does not fit the definition of "cruel or inhuman" treatment. In fact, I can't think of anything more cruel and inhuman than summary execution. In what world is lining defenseless people up against a wall who have been convicted or even charged with any crime and shooting them like dogs not cruel and inhuman?

Rev:"Secondly, and more importantly, you need to go here and read the lengthy list of qualifications the United States applied to the treaty when we signed it. What the text of the treaty itself says doesn't matter -- the United States is only bound by the treaty as interpreted and qualified by the Senate upon ratification."

Secondly, and more importantly, you need to go here and read the lengthy list of qualifications the United States applied to the treaty when we signed it.

Do you even bother to read these links before you provide them. I swear. You guys do half my work for me. I found this particularly amusing (you might want to pay particular attention to this Simon). Turns out that scene in 24 that Scalia was so enamored of and thought was so clever is particularly cited as a form of torture in the Senate's understanding of Convention:

"4) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind altering substances or other procedures calculated to disrupt profoundly the senses or personality."

Oh, and for executions, it only excepts executions when they are carried out under constitutionally protected procedures. Last I checked, summary executions are not protected by the constitution.

2. Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:

(a) That of being commanded by a person responsible for his subordinates;

(b) That of having a fixed distinctive sign recognizable at a distance;

(c) That of carrying arms openly;

(d) That of conducting their operations in accordance with the laws and customs of war.

I think the Senate can make explicit reservations from a treaty it ratifies, but I don't think the treaty is limited by the unspoken assumptions of the United States Senate. When you have a treaty to interpret, excepting those sections the Senate may have explicitly withheld assent to, one looks to the original meaning the document had to the ratifiers - the parties to the treaty.

I think I was unclear in my meaning, since I don't see a lot of difference between what you just said and what I wrote. I wasn't talking about any "unspoken assumptions", but about the specific reservations and understandings contained in the Senate's ratification of the treaty.

Freder - In what world is lining defenseless people up against a wall who have been convicted or even charged with any crime and shooting them like dogs not cruel and inhuman?

The world of war, idiot!

Just as killing vulnerable enemy soldiers who were unlucky to be alive and drafted at the wrong time - without trial - is total legal and the way wars always go. Same with bombing or shooting civilians unlucky enough to be at the fuel depot or riding in the terrorist's care or living in their house.Tough luck.****************I agree the volume of blubbering about enemy rights will diminish considerably once their special buddies make piles of dead Blue State people or Euroweenies again and they can't pin the Jihado slaughter on "evil America creating the root causes".It would be tragic and sweet, too, if some Gitmo Islamoid is released and kills a US soldier or innocent civilian here or abroad....and we wake up in shock to people at the funeral calling for the death of ACLU lawyers or people like Kenneth Roth of HRW.**********************Eli Blake - What is disturbing about the whole thing is that the spectre of 'nuke L.A.' has been used to justify the mistreatment of thousands of prisoners around the world.

In other words, the administration has used a scare tactic about a hypothetical to justify torture and other kinds of abuse against people who did not have knowlege of any such plan (or are you going to tell me that there are hundreds of nuclear weapons plots out there ...

No, you confuse a hypothetical "worst case" argumentabout a terrorist and a nuke weapon that could kill millions into an argument that since most terorists are only content to butcher dozens, hundreds, thousands by conventional means - no interrogation rises to the worst case as shouldn't be done since no nuclear weapon is involved and the butchery doesn't thus rise to a level of considering "violating terrorist's precious civil liberties".

I am perfectly down with coerced interrogation of what Eli Blake apparantly considers "mistreatment of a car bomber merely seeking to kill "only" 8 US soldiers in an Amphib or 100 civilians in a marketplace.

Bush and our political leadership was scared off doing what it takes to stop unlawful enemy combat after Abu Ghraib and now deliberately sacrifice US troops and Iraqi civilians to Jihadis rather than be seen as "mean to them".

My preference would be to treat any Islamoid caught with IED materials, RPGs, explosives as outside Geneva and stood up against a wall and summarily executed.Or marched out into a field by Iraqis, tied to their bomb materials, and detonated in front of a crowd.

Accept a few months of Lefties and Euroweenies squealing and messing their panties over their Jihadi friends being treated so in return countless US and civilian lives are saved.

No nuke needed to justify such harsh measures on Geneva violators.

And spare the lives of bomb-makers and high value leaders from such summary dispatching - not so they get their 3 gourmet halal meals a day and a personal ACLU lawyer - but so they can be taken and made to talk..

Your inability to think is not my problem, Freder. It remains a fact that the treaty doesn't cover executions, summary or otherwise

Now I know you didn't bother to read the link, because it does specifically cover executions. In fact that was one of the sticking points in ratifying the Convention- that it would make executions in the U.S. illegal. That is why the Senate added the language that its understanding of the Convention was that legally and constitutionally permissible executions would not be a violation of the Convention.

Really Simon? Given the choice between a quick bullet to the base of the skull and painful torture that you would survive, which would you choose. It's a no-brainer for me.

Your argument, then, is that if A is torture and you'd rather experience A than B, then B must be torture. That argument makes sense only if you assume that torture is never preferable to non-torture, which is obviously nonsense.

Life imprisonment is not torture, nor is it cruel and unusual punishment -- not under US law, and not under international law.

But given a choice between (a) being castrated, having both my legs broken, all the fingers on my left hand cut off with pruning shears, and being (falsely) told that I and my entire family would be killed, and (b) spending the rest of my life in prison, I'd pick (a) without a second's hesitation. I'd rather endure incredible pain and live the rest of my life as a free cripple than live the rest of my life as a physically and mentally healthy resident of a prison cell.

We don't define torture by how much people would like to experience it. We define it by whether or not it causes them physical and/or mental anguish. A bullet through the head causes neither -- indeed, it is obvious that a person given plenty of time during a trial and appeals process anticipate and fear his execution suffers more than a person who is simply killed without any discussion.

In any case, though, the Senate ratification explicitly exempts capital punishment from the "torture" definition. So even if you felt the urge to twist the meaning of the original document to cover executions, it is a plain fact that the treaty doesn't ban *America* from doing it.

Bush and our political leadership was scared off doing what it takes to stop unlawful enemy combat after Abu Ghraib and now deliberately sacrifice US troops and Iraqi civilians to Jihadis rather than be seen as "mean to them".

Except of course Cedarford, it was the uniformed military, withstanding the pressure of the Bush Administration, that issued a new Army Field Manual on Interrogation that left the existing rules, the ones you deride so forcefully, unchanged. You claim to have been in the military. Yet you seem to have no sense of the honor, duty and morals that typify an American service member. I think maybe you were in the Soviet military. Your total lack of any moral sense is more typical of the Soviet Union's attitude to warfare than the fine traditions of this country.

In any case, though, the Senate ratification explicitly exempts capital punishment from the "torture" definition. So even if you felt the urge to twist the meaning of the original document to cover executions, it is a plain fact that the treaty doesn't ban *America* from doing it.

In accordance with the constitution and the law Simon. Summary execution (which by definition is lining people up against a wall with absolutely no process at all) does not even come close to the type of execution described in the Senate's exceptions. Regardless of the treaty, such treatment of prisoners is strictly prohibited by military law.

The army kills people who are fighting it while seeking to minimize collateral casualties and damage. When the enemy shows a clear intention to surrender and it is prudent to accept that surrender, then the prisoners are to be treated in a humane manner. The army does not summarily execute prisoners nor do they torture people (at least they're not supposed to).

My preference would be to treat any Islamoid caught with IED materials, RPGs, explosives as outside Geneva and stood up against a wall and summarily executed.Or marched out into a field by Iraqis, tied to their bomb materials, and detonated in front of a crowd.

Careful Cedarford, you might invoke the martyr clause. I would suggest tying the bomber up next to a pig, detonating the IED then burying all the piece parts of both in the same grave.

Freder Frederson said..."It is a funny interpretation of the plain meaning of a statute (you might want to ask Simon about that) where summary execution does not fit the definition of "cruel or inhuman" treatment."

It's an interesting question, actually. In ratifying that treaty, the Senate explicitly reserved that "the United States considers itself bound by the obligation under article 16 to prevent `cruel, inhuman or degrading treatment or punishment', only insofar as the term `cruel, inhuman or degrading treatment or punishment' means the cruel, unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States."

The question rests on which of the following is the more reasonable construction of that language:

1) The United States ratifies subject to the understanding that it considers "cruel, inhuman or degrading treatment or punishment" to mean only those punishments that are cruel and unusual within the meaning of the Eighth Amendment as applied to the states by the Fourteenth Amendment;

or

2) The United States ratifies subject to the understanding that it considers "cruel, inhuman or degrading treatment or punishment" to mean only "treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments."

Both constructions suffer from an obvious difficulty: surplusage. It is an "established principle that a court should give effect, if possible, to every clause and word of a statute." Moskal v. United States, 498 U.S. 103, 109 (1990) (internal quotation marks omitted) (quoting United States v. Menasche, 348 U.S. 528, 538-539 (1955), in turn quoting Montclair v. Ramsdell, 107 U.S. 147, 152 (1883)). The former construction offered above denies effect to the presence of the Fifth Amendment in the text; the latter denies effect to the words "the cruel, unusual and inhumane treatment or punishment prohibited" (emphasis added). While it's true that courts' "preference for avoiding surplusage constructions is not absolute," Lamie v. United States Trustee, 540 U.S. 526, 536 (2004), and "the preference is sometimes offset by the canon that permits a court to reject words as surplusage if inadvertently inserted or if repugnant to the rest of the statute," ibid. (quoting Chickasaw Nation v. United States, 534 U.S. 84, 94 (2001) (internal quotation marks omitted), in turn quoting K. Llewellyn, THE COMMON LAW TRADITION 525 (1960)), willingness to accept surplusage has usually been in situations where the meaning would be plain but for the surplus word(s). See ibid. ("[w]here there are two ways to read the text ... [w]e should prefer the plain meaning since that approach respects the words of Congress"). But here, it doesn't seem clear to me that eliminating surplusage breaks the tie.

Nor (unusually for treaty construction) can we turn to the constructions reached by our cosignatories, because we here contrue a reservation made by the United States and only by the United States. Even if another signatory had made an identical reservation, tying their interpretation of Article 16 to the meaning of the 5th, 8th or 14th Amendments of the Constitution of the United States, while foreign interpretations of American law are not absolutely barred (cf. Dodd, The Misguided Search for the 'One Law - and the Ongoing Struggle to Articulate it Correctly' (foreign courts' interpretations of non-American law should not influence American courts' interpretation of American law)), they are disfavored and certainly nonbinding.

Lacking any better tiebreaker, preferring to avoid constructions seemingly at odds with the purpose of a statute (or in this case treaty) and with one eye on the rule of lenity, I think construction #2 is more likely. I think I would hold that summary execution being violative of due process, and violations the reservation made by the Senate in ratifying this treaty that "cruel, inhuman or degrading treatment or punishment" encompasses violations of due process, the United States is barred by the International Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment from conducting summary executions.

Of course, for obvious reasons, no one would have standing to litigate this claim, so this is all hypothtical.

"So this is what the Left claims now: that we routinely torture people detained in random sweeps. What a crock. There is absolutely no evidence for that. The few aggressive interrogations that have occurred have been done on obvious terrorists like KSM, for the purposes of obtaining info to stop future attacks?" - Sloanasaurrus

Right. Yet we've killed over 100 people via torture in the War on Terror (research it if you don't believe me), and we have zero clue whether they are guilty or innocent or not.

We don't define torture by how much people would like to experience it. We define it by whether or not it causes them physical and/or mental anguish. A bullet through the head causes neither -- indeed, it is obvious that a person given plenty of time during a trial and appeals process anticipate and fear his execution suffers more than a person who is simply killed without any discussion.

Well, Simon we rarely start a discussion of how evil and cruel the Nazis were because of all the people they tortured. No we are more concerned that they managed to execute somewhere between 9 and 12 million people in the space of about four short years (most of the killing actually took place between 1942 and early 1945). So if you want to make up lurid torture fantasies to decide which is worse (listening to Yanni or Jim Brickman for 48 hours straight is a tossup for me--I think I would rather take the bullet) then go for it. My only point is that how anyone can describe summary execution as anything other than cruel and inhuman is beyond me.

Yeah, actually, it did. I don't think the snark is warranted. As I think I made clear in my comment above, it's not nearly so easy a question as you seem to think it is if one's not willing to take shortcuts. Taking your comment about asking me about applying the plain meaning rule to the convention as an invitation, honestly, when I started writing, I expected to come out the other way, but whether you believe it or not, I follow my methodology where it leads. Reading the text, it seemed to me that there was an interpretative dilemma between two seemingly-reasonable constructions of the US reservations. Reasoning it out, the construction that swept due process violations within the prohibition seemed more in keeping with traditional rules of statutory construction than the construction prohibiting only 8th Amendment violations. I'd be highly skeptical that summary execution violates the 8th Amendment, however, and although it wasn't necessary to consider that question in view of my conclusion on the antecedent question, if I had concluded that the construction wherein only treatment and punishments violating the 8th Amendment are barred, I may well have come out the other way.

"I'm sure you don't believe in [substantive due process]."

That's kind of like the old joke - "I don't believe in divorce." "Really? I see it happening all the time!" No, I don't believe in substantive due process, but it should be obvious that if someone is executed summarily, they haven't been afforded due process.

Actually it is. I don't know how you could even contemplate that under our constitution, the common law or any conceivable concept of rule of law that summary execution could be permissible under any circumstances.

Freder - Actually it is. I don't know how you could even contemplate that under our constitution, the common law or any conceivable concept of rule of law that summary execution could be permissible under any circumstances. 10:01 PM

Thats because you are unusually dumb, Freder, in that you cannot see we and everyone else kill enemy in wartime - quite legally - with no due process at all.

Nor do you understand that "quarter" sparing the enemy instead of killing them out of hand, is a "privileged" right where that "privilege" is gained to be a POW ONLY if rigorous conditions are met. What you confuse is the Lefty's belief that we must go "over and above" what Hague and Geneva call for.

Except of course Cedarford, it was the uniformed military, withstanding the pressure of the Bush Administration, that issued a new Army Field Manual on Interrogation that left the existing rules, the ones you deride so forcefully, unchanged. You claim to have been in the military. Yet you seem to have no sense of the honor, duty and morals that typify an American service member.

I am only amused that a traitor who has admitted thinking his nation is evil and sides with it's enemy presumes to lecture anyone about honor and morals.

Milbloggers in combat specialties blame ridiculous ROE, "catch and release" of IED bombers by rear ech JAG and Iraqi "judges", and inability to interrogate to get intelligence for hundreds of extra US casualties. They generally hate JAG - the same crew that foisted your beloved "Field Manual" and other boy scout rules on them - and JAG fans like Lindsay "Weasel" Graham, "Manchurian Candidate" McCain.

Along with a hostile media, horrific decisions by Team Bush, and inadequate numbers...the chickenshit barriers the JAG lawyers have imposed on the troops have set America up for defeat and a far worse future war against the radical Islamoids and their "special friends" on the Left.

Freder Frederson said..."I don't know how you could even contemplate that under our constitution, the common law or any conceivable concept of rule of law that summary execution could be permissible under any circumstances."

In other words, you don't even have to contemplate why or where your morality is expressed in positive law. It just is. If you believe it strongly enough, ipso facto it must be law. Typical.

The question isn't whether summary execution is prohibited by some law, somewhere, reaching some circumstances. The question is specifically "does the convention bar summary execution." To answer that question, you have to figure out what constitutes "cruel, inhuman or degrading treatment or punishment." The answer to that question isn't "whatever offends my sense of morality." The Senate has told us what it means: it means "the cruel, unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States." But that text is obviously ambiguous as I explained above.

Of course, the literal answer to your point ("under our constitution ... summary execution ... [is not] permissible under any circumstances") is that you're entirely correct: under our Constiutution, summary execution is impermissable. Which clause(s) make it so? The due process clauses make it so. Thus, if the Convention sweeps due process violations into its proscription on cruel, inhuman or degrading treatment or punishment, then the convention bars summary execution. If it sweeps only that treatment or those punishments barred by the 8th Amendment into the proscription on cruel, inhuman or degrading treatment or punishment, then the convention very likely does not summary execution (if you have a case to cite suggesting otherwise, feel free, but after your performance in the US Attorneys thread the other month, you'll forgive me if I don't hold my breath). You seem to think that is an unthinkable result, but it isn't. The Bill of Rights guarantees the freedom of speech against intrusion by government, but more specifically, the First Amendment guarantees that right. The Sixth Amendment does not. So if you have an international treaty which the United States says it will construe in pari materia with the Sixth Amendment, that does not incorporate the guarantees of the first amendment into the treaty, only those of the Sixth. This isn't rocket science, Freder.

In accordance with the constitution and the law Simon. Summary execution (which by definition is lining people up against a wall with absolutely no process at all) does not even come close to the type of execution described in the Senate's exceptions.

My name's not Simon, first of all. Secondly, if you'd been paying attention you'd remember that I said it would be fine to do that after a tribunal had determined that they were, in fact, fighting members of Al Qaeda or the Taliban -- i.e., our mutually declared wartime enemies. So nobody's getting killed "without process". Finally, the Senate's exception doesn't describe a "type of execution", nor does it state what processes will be required prior to the execution.

The military has a long-established right under international law -- dating back millennia, and applied during every war we're fought in -- to kill our enemies without giving them a jury trial.

Well, Simon we rarely start a discussion of how evil and cruel the Nazis were because of all the people they tortured. No we are more concerned that they managed to execute somewhere between 9 and 12 million people in the space of about four short years (most of the killing actually took place between 1942 and early 1945).

I see you're still off in your fantasy world where my name is Simon.

In any case, you have, as usual, missed the point. Whether or not killing someone is worse than torturing them is completely irrelevant to this discussion. The point under discussion is whether or not execution IS torture, not whether or not execution is WORSE than torture. Things that ARE torture are banned (within the aforementioned limits) by the treaty. Things that are NOT torture are NOT banned by the treaty, even if you and I agree that we'd rather be tortured than experience them.

That's what I was getting at in my example. Long prison sentences are worse than torture; most people would rather suffer weeks of agonizing pain than decades of confinement. Despite that, long prison sentences are NOT torture and are NOT banned by that or any other treaty to which the US is a signatory. The same reasoning applies to executions -- they are among the many things which are worse than torture, but they are not themselves a form of torture.

Not sure that I want to jump in again, seeing as I am now a spokesman for The Left, and all, but here goes:

I don't have an issue with soldiers doing their job. I understand that often, in the heat of battle, things happen. Right things. Wrong things. Total clusterf##ks. And noble, selfless things. That's war. No problem there. I would not, as Drill Sgt. or Fen suggested of some straw man, argue that a field officer not go aggressive on someone who had knowledge of IEDs, for instance.

In the case of the ticking bomb hypothetical, in broad terms, I agree with Scalia. A jury should not convict, nor should it even come to trial, were an officer or an agent do something extraordinary to get crucial information from someone known to have that information.

About that special program to extract vital information from high-ranking Nazis? Excellent. Sounds like a super program, and I have no objections.

As to the idea that everyone who is/was in Gitmo or Abu Ghraib was guilty of something or was an enemy combatant, well, then I'm confused as to why we have released any of them. On the face of it, those releases seem to indicate that we did sweep up some people who had nothing to do with terrorism.

Sloan, the "few aggressive interrogations" you cite are not the only examples of torture in the past five years. If it were only a "few aggressive interrogations," I would not have a problem. We got a window into what happened at Abu Ghraib. As best I can tell, there was torture there, and I'm not convinced that it was delivered with extreme prejudice.

Yes, I am concerned about torture becoming routine, but I don't think we're there. Nor would I assent to the way you (Sloan) paraphrased my comment. My comment follows Scalia's hypothetical. I am attempting to point out that the fictional scenario is being used by apologists in an attempt to dismiss actual abuses.

In a war for the hearts and minds of the Iraqi people, what happened at Abu Ghraib was a setback. All the Jack Bauer fantasies on TV won't undo that.

I want to take this opportunity to commend Peter Hoh. Even Fred also, a little bit. I really do enjoy give and take with people on the left who are reasonable. (People on the left have cast out Althouse for whatever reason, but shebravely remains a Democrat.)

That's why I'm here, really. Talking to people on the right is often boring. I know it all so well. Talking to the loony left is like being in an insane asylum.

Anyway, I'm not going anywhere with this. It was just refreshing to read your post, Peter, in light of the absurdity I have seen on other Althouse threads today.

In a war for the hearts and minds of the Iraqi people, what happened at Abu Ghraib was a setback.

It didn't have to be a setback. Abu Ghraib was crimes committed by a few individuals who abused their power as guards when their superiors were not looking.The media went ape over it and made Abu Ghraib a world tragedy, yet no one was massacred. They were only made to stand in degrading positions. I remember harks from the liberals that this was worse than death for arabs… as if they were Klingons or something. Of course, the world was spared the pornographic images of Lyndie England having sex with her fellow guard boyfriend. Apparently these photos were randomly dispersed among the photos of naked pyramids. Yet showing those would have taken away from the America bashing and shown the situation for what it was… a bunch of idiots doing idiot things.

Abu Ghraib was a crime that was taken to a new height because of media greed for a story that would embarrass America. They could have reported on the story without showing the pictures. This wasn't that big of a story. It was no My Lai, not even close. Justice would still have been done, the soldiers still prosecuted, but the media couldn't help themselves. They and their liberal allies wanted to bash America, to bash the military, and to undermine our mission in Iraq. So they published the pictures… for days and days and days, implying that it was systemic when it wasn't. They were successful. Hundreds of American soldiers are dead because of the media's irresponsibility at Abu Ghraib. It is just another example of the media and liberals giving aid and comfort to the enemy.

The enemy is emboldened every day in Iraq by our own media and by Democrats in Congress. The terrorists know they cannot win militarily. Their hopes are the same as the confederates in 1864….that the Democratic party would come to power in the North and end the war. Lets hope the Democrats of 2008 are no more successful than the Democrats of 1864.

As to the idea that everyone who is/was in Gitmo or Abu Ghraib was guilty of something or was an enemy combatant, well, then I'm confused as to why we have released any of them.

We released them after -- all together, now -- a military tribunal determined that they weren't really enemy combatants. That's exactly how the system is supposed to work. The ones that the tribunal determined WERE enemy combatants, on the other hand, are exactly where they are supposed to be: imprisoned until the war's over.

Freder's argument, and that of much of the rest of the Left, is that that isn't good enough -- that we, unlike the entire rest of the world and the pre-Bush United States, are now obligated to give *trials* to people we capture during wartime, and that if we aren't willing to do that then we have no alternative but to release them so they can continue trying to kill us.

Have we killed innocent people fighting this war? Well, let me put it this way -- if we haven't, that'd be the first time in history anyone's managed that trick. I'd rather risk killing innocent Saudis than risk letting non-innocent Saudis kill innocent Americans.

Many people have said that, if the agents managed to save lives, they wouldn't be prosecuted. Oh, really? In that case, why not put that in writing? The difference between people who advocate limited legalization of torture and people who advocate limited unofficial wink-and-a-nod decriminalization of torture is that the former are actually honest and respectful of the law, wouldn't you say?

The explanation for this confusing state of affairs is, of course, is that few people want to own up to the fact that they really are ok with torture under certain circumstances. They want plausible deniability where the morality of it all is concerned. Yeah, we know that the "I'm 100% against torture" pose is, in most cases, horseshit ("torture a foreigner or watch your children die" is an easy choice for almost any human being), but only almost.

What you are asking, basically, is that law enforcement agents use their best judgment about when to torture people and just take it on faith nobody will prosecute them for it. Despite the fact that every time the government DOES foil a terror plot, the lefties and Democrats crawl out of the woodwork to proclaim that the danger was exaggerated, that its all just propaganda, etc etc. If the FBI had caught one of the 9/11 conspirators and tortured the details of the plot out of him, allowing them to prevent the attacks, we'd be up to our necks in people scoffing at the notion that anyone would be gullible enough to think there had been any risk ("hijack a plane with box cutters? What kind of a moron would fall for *that* story?") and demanding that the agents responsible be publicly crucified for their flagrant violation of our most cherished moral values.

The simple reality of American society contains a lot of people make political hay out of condemning everything the government does to protect us (and out of condemning everything it didn't do to protect us, when attacks do happen). If the FBI stopped a nuke from going off a lot of people simply wouldn't believe it, because to them believing that the government is chock full of evil men who delight in torturing innocent dusky-skinned people is a hell of a lot easier than believing that there are, in fact, rather a lot of people out there looking to kill rather a lot of Americans.

In short (too late, I know), you're asking law enforcement to go ahead and torture people when need be, and trust to the tender mercies of people who (a) claim there's no real terror threat and (b) claim to be vehemently anti-torture, to protect them from felony prosecution.

Well, Rev, if I get to characterize some of the voices on the right as you do the left, then it seems that some of them don't even want the tribunals to happen.

I'm only responsible for my own opinions, not those of overzealous right-wingers. Anyway, if you feel I am unfairly "characterizing" the left on this issue, may I assume that you agree that the military tribunals are all the process our prisoners are entitled to? If so then I think we're on the same page here.

Even if they don't describe you personally, though, I don't think my claim that Freder and much of the left think our prisoners are entitled to trials is even the slightest exaggeration.

BTW, Rev, didn't you get the memo? The Saudis are our allies in the GWOT.

I've heard various Bush Administration officials claim that, but I can't say I've ever met anyone, right, left, center, or libertarian, who actually believes it. I honestly doubt anyone in the Bush administration believes it, either, save maybe for a few of the residual "realists" like Howard Baker who periodically sleaze up the place. In any case, even if Saudi Arabia was an ally that wouldn't change the fact that there are plenty of Saudis who aren't.

Rev, for what it's worth, I don't think torture should be safe, legal, and rare.

From what I have heard, the Israeli governement has found that torture is not an effective means of dealing with the terrorism they face. Did torture help the Brits end the years of IRA terror? No. What did? Answer that, and you get some bonus points.

Torture proponents and apologists (Hi, Ann) tend to overlook this dynamic, how good people are corrupted by the practice. Torture proponents have great confidence that torture will only occur in accord with the guidelines and no worse.

fen, al qaeda is not my government. Nor are they a respectable yardstick for us to use. (And I can't say enough what assh*les they are).

The reality is, Al Qaeda is thriving under the Bush Command's approach to terrorism. Their approach is not working, though they've had free hand for years.

It's time to try something else and to leave partisan politics out of our foreign policy. But when occupation and State officials are chosen based on loyalty to Bush instead of competence, it's no surprise we'd have such a disaster.

The reality is, Al Qaeda is thriving under the Bush Command's approach to terrorism. Their approach is not working, though they've had free hand for years.

AQI is being slaughtered as we speak. Check out Micheal Yon [the rest of the MSM missed this, sipping tea inside their hotel rooms]

But there's no way that fighting torture with torture improves the situation.

Of course. Who ever argued that it would? There's no reciprocity. Al Queda will stick drills in our soldiers regardless of what we do. There's no link there.

Literally, an eye for an eye.

Do you really equate waterboarding with what you saw in AQ's torture manual? I only posted it to remind you guys what torture really is.

You all seem to define broadly and attack narrowly: if I "degrade" a muslim terrorist POW by deliberately showing him the sole of my shoe, I'm guilty of violating Geneva and no better than people who pluck out eyeballs?

Fen:"[The left] all seem to define broadly and attack narrowly: if I "degrade" a muslim terrorist POW by deliberately showing him the sole of my shoe, I'm guilty of violating Geneva and no better than people who pluck out eyeballs?"

Or, better yet, "degrade" them by having them interrogated by a woman.

fen, maybe I shouldn't have said "literally an eye for an eye." I don't know of instances where eyes are removed - on either side, really. These are cartoons, not pictures, after all, of unknown authorship (see: memo on uranium from Niger).

But we do know that torture techniques up to, and beyond, waterboarding are used by the US. If you want to say that anal rape is much better torture than drills, or just that "our torture is better than their torture," you're just going to wind up sounding silly.

If you want to say that anal rape is much better torture than drills -

I don't. I think both are reprehensible.

But I think waterboarding, when done correctly by professionals under supervision, should be legally allowed to gather information. Didn't you say the same thing? Didn't you admit a few weeks back that you would approve of waterboarding if the information gained prevented an attack on your life, family, and city?

fen-fen says: "I find it odd that the Left is so outraged by whatever happened at Abu Ghraib, but no so much with Al Queda."

first all, i never hear anyone, left or right, defending anything al queda does, but have you considered the possibilty that the reason anyone might condemn abu ghraib...has something to do with us being...better or more civilized than them?

you continue to reveal yourself as being either dense or just plain dumb...period.

From what I have heard, the Israeli governement has found that torture is not an effective means of dealing with the terrorism they face.

I'm not sure if that's true or not (do you have a link to your source?), but let's say for the sake of argument that it is.

First off, it is pretty obvious, wouldn't you say, that whatever tactics Israel has used to end terrorism haven't worked. Indeed, the only tactic that has come anywhere close to working has been physically preventing Palestinian Arabs from getting into Israel. Everything else, from war and assassination to diplomacy and humanitarian aid, has been a complete and utter failure. In short, "the Israelis don't do it" doesn't tell us much of anything.

The Brits are perhaps a better example, in that Irish terrorism is largely a thing of the past. But what ended terrorism in that case wasn't anything the Brits did or didn't do -- the Irish basically just got fed up with terrorism. There is no sign of the Muslims following suit, nor should we expect them to. Whereas the Irish basically just wanted Ireland (and pretty much have it), the Muslims want the whole freaking planet.

Secondly, we're not talking about "ending terrorism", we're talking about preventing terrorist attacks. Nobody has the slightest idea what it'll take to get the Muslims to quit trying to murder us; we've tried it all, and none of it works. Personally, my gut instinct is that the Muslims will have to learn the same lesson the Japanese learned -- that we do, in fact, consider extermination an option if they refuse to end their aggression. Anyway, whatever the plan for ending *terrorism* is, I agree torture doesn't bring us closer to it (or further away from it, for that matter). What torture CAN do, and has done in Israel and Great Britain, is prevent specific terrorist attacks and disrupt specific terrorist networks.

Finally, comparing the USA to Israel and Great Britain isn't necessarily that helpful, because the type of terrorism we're worried about is fundamentally different. The problem facing both of those nations is/was a large number of terrorist attacks by their immediate neighbors that were, taken individually, fairly trivial, and were in most cases not part of a larger plan by an organized terrorist group. The leaders of Hamas probably don't have the foggiest idea who's detonating the next suicide bomb or where it is being detonated; they supply the bombs, and Palestinian nutjobs queue up to do the actual dying. Intelligence-gathering of ANY variety doesn't really help there.

The United States is concerned about an entirely different sort of terrorism, because unlike Israel and the UK we are, thankfully, not located smack next to an enthusiastically terrorist-supporting nation chock full of people who want us dead, and our domestic population of radical Muslims is fairly small and easy to track. The kind of terrorism WE are worried about is large-scale attacks by organized groups -- 9/11-style attacks. Torture is a very useful information-gathering technique when you're already pretty sure the person knows something and are interested in easily-verifiable information (such as "where is the bomb" or "where is your safehouse").

To sum up, while torture may not have been a good option for the Brits and Israelis, that doesn't indicate that it wouldn't work for us.

"When the enemy shows a clear intention to surrender and it is prudent to accept that surrender..." [emphasis added.]

Wow, that's a big enough loophole to drive an entire Stryker Brigade through, don't you think? What's "prudent"? Who gets to decide? Are you going to be good with the 2nd Lt. on the ground deciding, or will you insist on lawyering this aspect up to the Supreme Court each time, too?

Rev,

I'll back you up on your 1:31am comment, and go further--what you say is much stronger than a mere hypothetical, because we in fact did get the 9/11 attacks yet still there's people who want to claim the perps didn't do it!